South Carolina Child Custody

If you are facing a separation/divorce matter or you are aren't married but have children with someone and you are considering separating you most likely have many questions related to the child custody laws in South Carolina, how things will look when you separate, and what you can expect when it comes to time and responsibility for your children.  When you discuss things with friends who have "been there, done that" or you begin your research online you hear lots of terms.  Many of them are confusing or seem contradictory.When it comes to custody of children I encourage people to ignore general words like sole custody, joint custody, shared custody and consider two things: (1) the time with their children and (2) the responsibility and decision-making for the children.  Let's look at each individually.

Time with your children

The SC Code identifies two types of custody in §63-15-210: joint custody and sole custody.  These terms really have nothing to do with the time you have with your children.  The court may identify a parent to be the "primary" parent for issues such as school assignments but that doesn't mean that one parent has the child the majority of the time.In a child custody case - and primarily while being negotiated by the parties - an agreement can be reached that resolves the time with each parent issue in creative ways.  The parents may agree to divide the weeks equally, alternate weekly, have the child live with one parent the majority of the time and available when the other parent is off of work, and countless other options.  Judges are even beginning to stray from the old every other weekend mentality by extending those weekends and adding more off-week time with the children and the non-custodial parent.All of that to say: don't assume one parent has to have the children the majority of the time and the other parent has to settle for alternating weekends.

Responsibility and Decision-making for the children

South Carolina custody laws set forth two types of legal custody: joint custody and sole custody.  These specifically related to the responsibility and decision-making for the children.  §63-15-210 defines joint custody when parents have equal rights and responsibilities for major decisions concerning the children.  This can work in many cases, but can also be a bad decision for other parents who simply can not co-parent and work together.  The court can designate one parent to be the primary decision-maker for several or all issues including the children's health, education, religious upbringing and general wellbeing.  The court can also So in the event the parents cannot agree to a final decision one of them can make a decision.  This primary decision making can also be broken up between the parents where one parent is the primary decision-maker for health and religious issues and the other would be the primary decision-maker for educational issues.  Even in instances where there is a primary decision-maker, the requirement is still there for the parties to confer jointly in the decision-making process.  The primary decision-maker does not have the right to make all of the decisions without conferring with the other parent.In the case of sole legal custody of the children the custodial parent has the legal authority to make all of the decisions for the children without the input or opinion of the other parent.  In cases where one parent has not been involved in the life of the children or the parents simply cannot put aside their differences and work together to co-parent, this is the most likely outcome in a custody case. 

Alimony in South Carolina

Alimony is a hot topic in many South Carolina divorce cases, but many times spouses ask for it in order to punish their spouse for some bad deeds committed during the marriage.  So what is alimony?Alimony is defined as "a substitute for the support which is normally incident to the marital relationship" Lide v. Lide, 277 SC 155 (1981).  What does that mean?  It means that while the couple is together they have some expectation that there is some mutual financial support for the marriage.  When the marriage is ending and the parties separate alimony helps the spouse with the smaller income to have a similar lifestyle to that which he/she became accustomed to during the marriage.SC Code §20-3-130(A) states that the Family Court may award alimony "in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case".   Essentially what that means is that the Family Court Judge who is deciding the case has a lot of discretion to determine the amount of alimony that is awarded.  Unlike child support, there is no calculator or formula for the court to use to determine an amount.

Types of Alimony

In general, the statute outlines four different types of alimony that can be awarded by the Court in SC Code §20-3-130(B):(1) Periodic alimony.  This is alimony that is paid every month on an ongoing basis and is generally thought to be permanent.  This type of alimony will only end when the receiving spouse remarries or on their continued cohabitation or either spouse dies. This alimony therefore may be terminated and is modifiable upon a showing of a substantial change in circumstances.(2) Lump-sum alimony is a set amount of money that is paid as alimony and not as a property division.  It can be paid in one lump sum or it can be paid out in installments over time, but the end amount that is paid is fixed.  For example, Husband agrees to pay Wife the sum of $100,000 in lump sum alimony.  He can write her a check for $100,000 or they could agree for him to pay $10,000 per month for 10 months.  This type of alimony is not modifiable and is only terminable upon the death of the supported spouse.(3) Rehabilitative alimony is another fixed sum of alimony that is paid in installments and is used in many cases to help the supported spouse financially while he/she obtains new training or completes their education that will allow them to become self-supporting.  This type of alimony is terminable on the remarriage or continued cohabitation of the supported spouse and the death of either spouse, or when a certain event happens in the future (e.g. the supported spouse graduates from college).  This type of alimony is also modifiable when an unforeseen event occurs that prevents the supported spouse from becoming self-supporting or if it frustrates the ability of the supporting spouse to continue to pay.(4) Reimbursement alimony can be paid in a lump sum or in installments and will end on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse.  This alimony will not end and cannot be modified based upon changed circumstances in the future. The statute describes this form of alimony as an options the the Court believes it is "desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage."  A good example of this is when one spouse dutifully supports the other spouse as they go through medical school.  Once the doctor spouse graduates from medical school and begins to earn some substantial income he/she decides to divorce the spouse that supported him/her through school.  This allows the non-doctor spouse the opportunity to benefit from the investment they made into the family's future income.

Factors Considered by the Family Court to Determine Alimony in South Carolina

SC Code §20-3-130(C) sets forth the factors that the Family Court must consider when determining whether to award alimony and how much alimony should be awarded:(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;(2) the physical and emotional condition of each spouse;(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;(4) the employment history and earning potential of each spouse;(5) the standard of living established during the marriage;(6) the current and reasonably anticipated earnings of both spouses;(7) the current and reasonably anticipated expenses and needs of both spouses;(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;(11) the tax consequences to each party as a result of the particular form of support awarded;(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and(13) such other factors the court considers relevant.

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Who Wins Custody of a Child when a Spouse Cheats?

Child custody cases can be highly contested because of the emotional nature of the subject.  Throw in a flammable issue like adultery and be prepared for some fireworks!  Adultery is an issue that can cloud judgment on both sides of a case and prevent even the most straight-forward of issues from resolving themselves outside of a court room.  But does adultery truly impact the custody decision of the court?When deciding custody, the family court judge must determine what is in the best interest of the child.  The SC Code sets forth some factors that the Court should consider in determining the "best interest" in each case:

1. the temperament and developmental needs of the child;
2. the capacity and the disposition of the parents to understand and meet the needs of the child;
3. the preferences of each child;
4. the wishes of the parents as to custody;
5. the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
6. the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
7. the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
8. any effort by one parent to disparage the other parent in front of the child;
9. the ability of each parent to be actively involved in the life of the child;
10. the child's adjustment to his or her home, school, and community environments;
11. the stability of the child's existing and proposed residences;
12. the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
13. the child's cultural and spiritual background;
14. whether the child or a sibling of the child has been abused or neglected;
15. whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
16. whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
17. other factors as the court considers necessary.

[SC Code §63-15-240(B) - emphasis is mine]I think it is important to note that the Code does not list one spouse's marital fault such as adultery as a specific factor the court should consider.  However, I  have highlighted a few factors that something like adultery may fall into.  Often, parents can be temporarily blinded by "new love" and focus more time on the new boyfriend or girlfriend while not spending as much quality time with their children.  A new love may also throw living arrangements and residences into disarray.  Is your spouse living with their boyfriend/girlfriend?  What if your spouse is bringing the child around the boyfriend or girlfriend?  Is your spouse moving back and forth between their apartment and the lover's?  What if you have raised your children in a home where their spiritual foundation has taught them adultery is wrong?  Paragraph 17 also gives a lot of room for the family court judge to consider the other important factors that they believe directly impact custody.The bottom line is that child custody is largely a case-by-case decision to determine what is best for your particular children.  In some cases, adultery can be a factor that would prevent a parent from obtaining custody of the children.  In other cases it simply is not enough to outweigh awarding custody to that parent. 

How Do We Prove the No Fault Divorce Ground: Continuous Separation for Over 1 Year

Question: My wife and I have lived apart for over ten months but the first 6 months she lived with her mother, the last four months she has owned her own home.  We both want a simple divorce, how do we account for the first 6 months of separation?Answer: The South Carolina Code of Laws sets forth five grounds for divorce in South Carolina in §20-3-10.  Sub-paragraph (5) is the provision for the no-fault ground as follows, "on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year."The law essentially only requires living apart from one another for greater than one year.  Our appellate courts have identified some things that do not qualify as living "separate and apart" such as one spouse moving out of the marital bedroom and sleeping in the basement or the couch in the den.  Likewise, living in an RV in the backyard would also not be living separate and apart.Your case is different.  You did separate and your wife moved into her mother's home for the first six months of separation and later she purchased a home of her own.In a hearing for divorce on this ground the evidence is typically the testimony of a witness who has a good relationship with one or both of the parties who can corroborate that you have lived apart for more than one year and have not resumed cohabitation during that time.  So, in your case, perhaps her mother could testify that your wife moved in with her for six months and then moved into her own home.  She could go on to testify that when your wife moved out of her home she moved into a new home of her own and she keeps up with her daughter on a regular basis and is confident that the two of you have not resumed cohabitation.

Do Fathers have Custody Rights when Parents Were Never Married

Question:My ex and I have two children, but were never married.  When we separated the kids lived with and stayed with me on the weekends or every other weekend depending on their schedule. No custody agreement had been made with the courts. She recently married and left the state to be with her new husband. She left the children with me.  Do I have rights and if so what do I need to do to take custody of my children?Answer:You certainly have rights, but since you were never married paternity must be established by the Court. You may be listed on the birth certificates for the children, but likely have few guaranteed rights since the children were born outside of marriage and you have not been to court to formalize any custody/visitation.  SC Code §63-17-20(B) states, "Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity."If you have been court ordered to pay child support you should have been adjudicated the father by the Court.  And, if you are on the birth certificate then you are presumed to be the father because of the acknowledgment of paternity that you executed to be listed on the birth certificate.  So, that would take care of the the paternity issue, but since your child was born outside of marriage it will require a court order to provide you with custodial or visitation rights.You will need to file an action seeking temporary and permanent custody of the children. The first step in that case will be a temporary hearing where you will ask the court to award you temporary custody of the children. Your ex must be served with notice of the motion and hearing time. These cases can be complex and difficult to navigate through the system, so I would encourage you to speak with a lawyer in your area to help you out.  Initial custody cases in South Carolina are decided by the Court determining what is in the best interest of the children and the court considers many factors when determining the best interest.  The South Carolina Code §63-15-240(B) sets forth those factors:

1. the temperament and developmental needs of the child;
2. the capacity and the disposition of the parents to understand and meet the needs of the child;
3. the preferences of each child;
4. the wishes of the parents as to custody;
5. the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
6. the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
7. the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
8. any effort by one parent to disparage the other parent in front of the child;
9. the ability of each parent to be actively involved in the life of the child;
10. the child's adjustment to his or her home, school, and community environments;
11. the stability of the child's existing and proposed residences;
12. the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
13. the child's cultural and spiritual background;
14. whether the child or a sibling of the child has been abused or neglected;
15. whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
16. whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
17. other factors as the court considers necessary.

None of these factors will tip the "best interest" scale alone, but all are considered and weighed by the Family Court Judge in the determination of custody.